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November 8, 1994

WALTER L. "BUD" KAMB, Referee, Plaintiff (s),

The opinion of the court was delivered by: FERN M. SMITH



 A. Undisputed Facts

 Plaintiff, Walter L. "Bud" Kamb, is a referee, duly appointed by the Mendocino County Superior Court in Action number CV61650 to sell three separate parcels of property on behalf of the owners of the property. The parcels are located east of Highway 1, approximately 1 mile north of the City of Fort Bragg in Mendocino County. One of the parcels is assessor's parcel number 069-251-X11, approximately eight (8) acres of which was formerly used as a rifle, gun, and trap range (hereinafter the "Site"), and was known as the "Fort Bragg Gun Club" or the "Noyo Gun Club".

 During the marketing of the property, Trans Tech Consultants was hired to perform an analysis of the soils of the Site for potential contamination. The consultant's report, dated May 29, 1992, stated that the initial testing showed the presence of lead in the soil at the Site in the form of lead shot, bullets, pellets, and dust, and that some of these samples exceeded hazardous or regulatory threshold levels.

 Following review of the Trans Tech report, the consulting firm of GeoSyntec of Walnut Creek, California, was hired to do follow up testing and evaluation of the Site. Richard A. Mitchell, a registered geologist and certified engineering geologist in the State of California, supervised the work.

 The analysis of samples taken from the Site disclosed lead concentrations in near surface soil which exceeded total threshold limit concentrations (TTLC) and soluble threshold limit concentrations (STLC) of 1,000 ml/kg and 5.0 ml/L, respectively. Further, the results indicated that hazardous levels of lead appeared to be in the upper 6 inches to one foot of soil. Additionally, Mr. Mitchell observed lead in the form of spent shots and pellets on the Site. Finally, GeoSyntec has preliminarily estimated that the cost to cleanup the Site will be in the range of $ 122,000 to $ 630,000.

 GeoSyntec has been paid $ 21,128.48 and Trans Tech has been paid $ 5,139.50 for the above described work; plaintiff Kamb has been paid $ 11,857.01 in fees for work in connection with responding to the identified contamination. These funds came from the proceeds of loans obtained by encumbrance of the owners' uncontaminated parcels, and contributions from owners of the property.

 Employees of each defendant discharged firearms containing lead bullets on at least some portion of the Site *fn1" pursuant to a contract or agreement with the Fort Bragg Gun Club which, based on information developed to date, the parties believe leased the Site from Theresa Carey Parks.


 I. Defendant United States' Motion for Judgment on the Pleadings

 A. Standing: Plaintiff Not Real Party In Interest

 Along with its opposition to plaintiff's motion for summary judgment, the United States, on August 5, 1994, filed a "Motion for Judgment on the Pleadings". The Federal Rules make clear that dismissal of the action is not the proper remedy for the alleged defect. The issue raised by the United states is whether plaintiff, as a referee, has standing to sue in his own name on behalf of the owners of the property. Plaintiff was granted authority to file this action on behalf of the owners by the Mendocino County Superior Court, pursuant to Cal. Code Civ. P. § 873.060. Section 873.060 pertains to the authority of referees appointed in actions to partition real property and provides as follows:

The referee may perform any acts necessary to exercise the authority conferred by this title, by order of the court.

 While this statute provides authority for plaintiff to bring this lawsuit pursuant to court authorization, it does not specifically authorize the referee to bring the lawsuit in his own name for the benefit of the property owners. Fed. R. Civ. P. 17(a) provides in pertinent part:

. . . a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. . . . [however,] no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

 Fed. R. Civ. P. 17.

 The Court finds that proper resolution of the objection of defendant United States is not to grant defendant's motion for judgment on the pleadings. Rather, the proper course is to allow an amendment of the complaint that substitutes the owners as proper plaintiffs and to dismiss Kamb as a party to this action.

 B. Standing: Plaintiff Has Not Incurred Response Costs

 The United States next argues that this action should be dismissed because plaintiff Kamb has not incurred any response costs, a prerequisite to filing a cost recovery action under CERCLA. 42 U.S.C. 9607(a)(1-4)(B). Courts interpreting the term "incur" under CERCLA apply a plain meaning approach, and have required that private parties seeking recovery under CERCLA's cost recovery provisions show that they have personally incurred response costs. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir. 1986); McGregor v. Industrial Excess ...

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